Agreeing what’s right

Peter Dews

  • Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats by Jürgen Habermas
    Suhrkamp, 667 pp, October 1992, ISBN 3 518 58127 9

On 9 November last year, the anniversary of Kristallnacht, the philosopher Manfred Frank was invited to give the principal address at the memorial service which is held annually in the Paulskirche in Frankfurt. The Paulskirche was the home of the first democratically elected German national assembly, which flourished briefly amidst the revolutions of 1848-9, and, in keeping with this setting, Frank refused to limit himself to a ‘retrospective ritual of mourning’. Rather, he used the occasion to consider contemporary events in Germany, in particular the rise of a violently xenophobic right-wing element, whose activities claimed 17 lives in 1992, and the reaction of the established political parties to it. Central to this reaction has been the attempt to limit the right of political asylum enshrined in Article 16 of the Grundgesetz, the German constitution. The provisional agreement reached between the main political parties on 6 December 1992 foresees abolishing this right for applicants arriving from an EC country or from any ‘safe third country’ deemed to have satisfactory asylum procedures of its own. Since Poland and the Czech Republic fall into this category, these measures will effectively cut off the flow of applicants, the vast majority of whom reach Germany by land.

Frank suggested that in Germany an ethnic rather than political definition of the nation, and an excessive concern with national unity and security, had repeatedly overridden the protection of individual freedoms, and had hindered the development of an appropriate conception of democracy: ‘The predominant conception of the essence of democracy is expressed in the demand that politics should bow to pressure from the streets.’ To illustrate this he quoted leading protagonists in the current Asyldebatte from both the Right and the Left. He then reached for a shocking comparison: ‘Goebbels’s populism invented a fitting jingle for what happens when one adapts to the unqualified feelings of the populace: “Our thinking was simple, because the people are simple. Our thinking was primitive, because the people are primitive.” ’ At this point many members of the audience, including the entire Christian Democrat contingent, walked out. Subsequently, all the parties in the Frankfurt Parliament (including the Greens) repudiated the speaker, and the furore occupied the local press for a fortnight afterwards.

These events illustrate the drawback of one possible interpretation of Faktizität und Geltung, Jürgen Habermas’s new book on the philosophy of law and the theory of the constitutional state. Under the headline ‘Jürgen Habermas makes peace with the constitutional state’, a pre-publication review in Der Spiegel sought to present the book as an old leftist’s recantation in response to the collapse of Communism, and his belated return to the fold of liberal democracy. But one of the deepest motivations of Habermas’s work has been an anxiety that the institutions and practices of the modern democratic state may not be sufficiently firmly anchored in the traditions of German thought and politics. He is convinced that the emancipatory potential of such a state needs to be defended against the powerful current in German philosophy and culture which views democratic ideals as – at best – helpless before, and – at worst – a positive symptom of, the spiritual desolation of modernity. It is not surprising, therefore, that Habermas should have sprung to Frank’s defence. In a highly combative article in Die Zeit he denounced the German government’s increasing tendency to contemplate altering, or simply bypassing, the constitution, for the sake of Germany’s self-assertion as a ‘normal’ nation-state. This ‘D-Mark patriotism’ is, in Habermas’s view, an attempt to compensate for the ‘normative deficits’ of a bungled reunification process, with its disastrous social consequences, particularly in the East. He repeated the argument he has made before: instead of what amounted to an administrative incorporation, through provisions contained in the Grundgesetz of the old Bundesrepublik, the reunited Germany should have had the opportunity to conclude a new ‘social contract’ in the form of a new constitution.

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